Judge: Donald F. Gaffney, Case: Billingsley v. Kingan, Date: 2022-11-02 Tentative Ruling

TENTATIVE RULING:

Demurrer to Complaint

Defendants Reiko Kingan and Charles Kingan demur to the first and second causes of action of Plaintiff Karen Billingsley’s Complaint. For the following reasons, Defendants’ demurer is SUSTAINED with leave to amend

In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7.)

First Cause of Action for Conversion

A cause of action for conversion requires allegations of the plaintiff’s ownership or right to possession of property; the defendant’s wrongful act toward or disposition of the property, interfering with the plaintiff’s possession; and damage to the plaintiff. (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.)

The Complaint alleges Plaintiff’s mother, Midori Hughes (“Decedent”), died on October 22, 2018. The Complaint further alleges Defendants “converted $245,619.15 to themselves from the sale of Midori Hughes’s home” and that “Plaintiff, as Midori Hughes’s surviving daughter, had the right to possession of at least one third of such funds.” (Compl. ¶¶ 8-9.)

Plaintiff has not sufficiently alleged facts demonstrating Plaintiff’s ownership or right to possession of property. Plaintiff’s allegation that Defendants converted the sale proceeds is conclusory. Without more, the allegation that Plaintiff is Decedent’s surviving daughter does not support Plaintiff’s right to at least one third of the proceeds from the sale. The demurrer to the first cause of action is sustained.

Second Cause of Action for Statutory Liability for Theft

Penal Code section 484 states that “[e]very person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her . . . is guilty of theft.” Penal Code section 496(c) empowers “[a]ny person who has been injured by a violation of [section 496(a)]” to “bring an action for three times the amount of actual damages [he has] ... sustain[ed]” as well as for “costs of suit[ ] and reasonable attorney’s fees.” (Pen. Code, § 496(c); Siry Investment, L.P. v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1133.)

As previously set forth, the Complaint does not allege sufficient facts to show that Plaintiff is entitled to a portion of the sale proceeds from Decedent’s home and that Defendants stole the money. The demurrer to the second cause of action is sustained.

Defendants’ request for judicial notice was not material to the disposition of the demurrer.

Should Plaintiff wish to amend the complaint to address the issues herein, Plaintiff shall file and serve the amended complaint within 30 days of service of the notice of ruling.

Defendants to give notice.